PROSECUTING

JOURNALISTS AT THE

SPECIAL TRIBUNAL FOR

LEBANON A CHALLENGE

TO FREEDOM OF

SPEECH

Anne-Marie Verwiel Mariacutea Barral Martiacutenez amp

Karlijn van der Voort

wwwinternationalcrimesdatabaseorg

ICD Brief 14

December 2015

1

ABSTRACT

Unexpectedly the Special Tribunal for Lebanon (hereinafter STL) has charged two Lebanese

media companies and two of its employees with contempt of court They are prosecuted for

broadcasting information on purported confidential witnesses and failing to comply with a court

order to remove this information from the internet thereby undermining public confidence in the

Tribunal These cases have revived the debate about the limitations to freedom of expression This

Brief examines whether the contempt proceedings at the STL constitute a legitimate limitation to

the mediarsquos freedom of expression This is done by applying an analysis of international law on

freedom of expression (as prescribed by the ICCPR and the ECHR and applicable case law) to

the first contempt case at the STL the Al Jadeed and Al Khayat case This Brief will show that both

the legality issues arising from the prosecution of a corporate entity and the lack of proof of the

alleged threat of undermining the publicrsquos confidence weaken the legitimacy of the infringement of

freedom of expression

Keywords STL Freedom of Expression Contempt of Court International Criminal Law

I INTRODUCTION

Since its inception the Special Tribunal for Lebanon (hereinafter STL) has been exploring the

boundaries of international law the emergence of the crime of terrorism trials in

absentia and lately two media companies have been charged with corporate criminal

liability These developments may have caused unease among academics and practitioners and

the STL has even been named ldquoa very special Tribunalrdquo1 In addition the contempt cases at the

STL have revived the debate about the limitations to freedom of expression especially among

journalists and within Lebanese society This Brief provides a legal analysis to this debate

encouraging further academic and public discussion

Two separate contempt cases have been brought before the STL The first case is against

Lebanese television company Al Jadeed TV and its deputy head of news Ms Khayat who were

both charged with two counts broadcasting andor publishing information on purported confidential

witnesses in the Ayyash et al case and failing to comply with an order of the court to remove this

information from their website and YouTube channel2 According to the order in lieu of

an indictment through these acts the accused undermined public confidence in the STLrsquos ability to

1 David Tolbert lsquoA Very Special Tribunalrsquo in Alamuddin et al The Special Tribunal for Lebanon (2014 Oxford

University Press) p 1 2 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed and Al Khayat Case No STL-14-05PTCJ Amended order in lieu of an indictment 17 October 2014 Annex p 3

1

ABSTRACT

Unexpectedly the Special Tribunal for Lebanon (hereinafter STL) has charged two Lebanese

media companies and two of its employees with contempt of court They are prosecuted for

broadcasting information on purported confidential witnesses and failing to comply with a court

order to remove this information from the internet thereby undermining public confidence in the

Tribunal These cases have revived the debate about the limitations to freedom of expression This

Brief examines whether the contempt proceedings at the STL constitute a legitimate limitation to

the mediarsquos freedom of expression This is done by applying an analysis of international law on

freedom of expression (as prescribed by the ICCPR and the ECHR and applicable case law) to

the first contempt case at the STL the Al Jadeed and Al Khayat case This Brief will show that both

the legality issues arising from the prosecution of a corporate entity and the lack of proof of the

alleged threat of undermining the publicrsquos confidence weaken the legitimacy of the infringement of

freedom of expression

Keywords STL Freedom of Expression Contempt of Court International Criminal Law

I INTRODUCTION

Since its inception the Special Tribunal for Lebanon (hereinafter STL) has been exploring the

boundaries of international law the emergence of the crime of terrorism trials in

absentia and lately two media companies have been charged with corporate criminal

liability These developments may have caused unease among academics and practitioners and

the STL has even been named ldquoa very special Tribunalrdquo1 In addition the contempt cases at the

STL have revived the debate about the limitations to freedom of expression especially among

journalists and within Lebanese society This Brief provides a legal analysis to this debate

encouraging further academic and public discussion

Two separate contempt cases have been brought before the STL The first case is against

Lebanese television company Al Jadeed TV and its deputy head of news Ms Khayat who were

both charged with two counts broadcasting andor publishing information on purported confidential

witnesses in the Ayyash et al case and failing to comply with an order of the court to remove this

information from their website and YouTube channel2 According to the order in lieu of

an indictment through these acts the accused undermined public confidence in the STLrsquos ability to

1 David Tolbert lsquoA Very Special Tribunalrsquo in Alamuddin et al The Special Tribunal for Lebanon (2014 Oxford

University Press) p 1 2 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed and Al Khayat Case No STL-14-05PTCJ Amended order in lieu of an indictment 17 October 2014 Annex p 3

2

protect the confidentiality of information about or provided by (potential) witnesses

and thus knowingly and wilfully interfered with the Tribunalrsquos administration of justice3 In its

judgment of 18 September 2015 the Contempt Judge found Al Jadeed not guilty of both charges

and Ms Khayat not guilty of count one but guilty of count two4 for which Ms Khayat has been

sentenced to pay a fine of 10000 euro5 In the second contempt case similar charges have been

brought against Lebanese newspaper Akhbar Beirut and its editor-in-chief Mr Al Amin6 with trial

proceedings scheduled to start in January 20167 Several media associations have claimed

that these cases are an attempt to prevent journalists from criticising the malfunctioning of the

Tribunal8 It has also been suggested that the prosecution is an attempt to silence journalists and

an attack against freedom of expression9 At the same time most people will agree that protection

is needed for witnesses who are under threat

In his opening statement in the Al Jadeed and Al Khayat case the Amicus Curiae Prosecutor

remarked that the Tribunalrsquos contempt power is an acceptable limit on the freedom of the media to

report on the Tribunal10 However legality issues may impair a fair balance between the mediarsquos

freedom of expression and the good administration of justice The purpose of this Brief is to

examine whether the contempt proceedings at the STL constitute a legitimate limitation to the

mediarsquos freedom of expression This question is answered by applying an analysis of international

law on contempt of court and freedom of expression ndash including case law from various other

international courts ndash to the Al Jadeed and Al Khayat case

3 Ibid 4 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed and Al Khayat Case No STL-14-05TCJ Public redacted version of Judgment 18 September 2015 5 STL Contempt Judge Amicus Curiae Prosecutor v Al Khayat Transcript 28 September 2015 p 45 See also STL Contempt Judge Amicus Curiae Prosecutor v Al Khayat Case No STL-14-05SCJ Reasons for Sentencing Judgment 6 October 2015 6 STL Contempt Judge Prosecutor v Akhbar Beirut and Al Amin Case No STL-14-06PTCJ Redacted version of decision in proceedings for contempt with orders in lieu of an indictment 31 January 2014 Annex p 3 7 STL Contempt Judge Amicus Curiae Prosecutor v Akhbar Beirut and Al Amin Case No STL-14-6PTCJ Scheduling Order 14 October 2015 8 See for example Kareem Shaheen lsquoSummonses provoke debate on STLrsquos authority over press in The Daily Star 30 April 2014 Ibrahim Al Amin lsquoThrough our solidarity we will confront the STLrsquo in Al Akhbar English 28 April 2014 and lsquoInformation Minister Voices Solidarity with Lebanese Journalists Summoned by STLrsquo in Naharnet

28 April 2014 9 See for example Owen Bowcott lsquoTrial of Lebanese broadcaster charged with contempt of court opens in Haguersquo in The Guardian 16 April 2015 Ahmed Aboulenein and Estelle Shirbon lsquoPress freedom at stake in Lebanon tribunal case says accusedrsquo Reuters 17 March 2015 Adam Taylor lsquoThe UNrsquos tribunal in Lebanon has cost millions and made no arrests Now the journalists are on trialrsquo in The Washington Post 7 April 2015 10 STL Prosecutorrsquos opening statement Amicus Curiae Prosecutor v Al Jadeed and Al Khayat Transcript 16 April 2015 p 17

3

II FREEDOM OF EXPRESSION

21 Introduction and legal framework

Article 19 of the United Nations Universal Declaration of Human Rights (hereinafter UDHR)

adopted by the UN General Assembly in 1948 provides that ldquo[e]veryone has the right to freedom

of opinion and expression this right includes freedom to hold opinions without interference and to

seek receive and impart information and ideas through any media and regardless of frontiersrdquo11

Although the UDHR as such is not a binding source of law it has been very influential in the

development of international human rights standards and it can be argued that a majority of the

provisions have become legally binding through customary international law12 Further the norms

applied by the different (regional) human rights institutions find their roots in the UDHR13 Both the

International Covenant on Civil and Political Rights (hereinafter ICCPR) and the European

Convention on Human Rights (hereinafter ECHR) show a firm commitment to the UDHR14 and

contain similar definitions on freedom of expression15

The binding nature of the ICCPR has been recognised by various international criminal tribunals

The Appeals Chamber at the International Criminal Tribunal for the former Yugoslavia (hereinafter

ICTY) in the case of the Prosecutor v Hartmann confirmed that in relation to freedom of expression

the ICCPR and its commentaries are among the most persuasive sources16 Regional human rights

treaties such as the ECHR and the jurisprudence developed thereunder are not binding of their

own accord on the Tribunal but of assistance in applying and interpreting the Tribunalrsquos applicable

law and authoritative as evidence of international custom17 The STL has also referred to both the

11 Article 19 United Nations Universal Declaration of Human Rights 10 December 1948 12 Javaid Rehman International Human Right Law Pearson Education Limited 2010 pp 25 77 amp 80 Jochen von Bernstorff lsquoThe Changing Fortunes of the Universal Declaration of Human Rights Genesis and Symbolic Dimensions of the Turn to Rights in International Lawrsquo in European Journal of International Law 2008 Vol 19 p 913 Stefaan Smis et al Handboek Mensenrechten De internationale bescherming van de rechten van de mens

Intersentia 2011 pp 33 98-99 and Tarlach McGonagle lsquoThe development of freedom of expression and information within the UN leaps and bounds or fits and startsrsquo in The United Nations and Freedom of Expression and Information edited by Tarlach McGonagle and Yvonne Donders Cambridge University Press 2015 p 8 13 Marjan Ajevski lsquoFreedom of Speech as Related to Journalists in the European Court of Human Rights IACtHR and the Human Rights Committee ndash a Study of Fragmentationrsquo in Fragmentation in International Human Rights Law edited by Marjan Ajevski (Norwegian Centre for Human Rights 2015) p 32 14 Ibid p 33 and footnote 9 Preamble of the ICCPR and Preamble of the ECHR 15 Article 19 ICCPR states ldquo1 Everyone shall have the right to hold opinions without interference 2 Everyone

shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choicerdquo Article 10 ECHR states ldquo1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers (hellip)rdquo 16 ICTY Appeals Chamber Prosecutor v Hartmann Case No IT-02-54-R775-A Judgment 19 July 2011 para 160 and footnote 316 ICTR Appeals Chamber Prosecutor v Jean-Bosco Barayagwiza Case No ICTR-97-19-AR72 Decision 3 November 1999 para 40 (finding that the ICCPR ldquois part of general international law and is applied on that basisrdquo) 17 ICTR Appeals Chamber Prosecutor v Jean-Bosco Barayagwiza Case No ICTR-97-19-AR72 Decision 3 November 1999 para 40 ICTY Appeals Chamber Prosecutor v Hartmann Case No IT-02-54-R775-A

4

ICCPR and the ECHR (and its jurisprudence) in the application and interpretation of international

human right norms18 Although evidently the STL is not a party to these treaties their application

and interpretation constitute persuasive evidence of international custom with the ICCPR having

167 state parties being close to universal application19 As the jurisprudence of the ECHR provides

more detail and variety on some of the relevant issues in the current analysis both the ICCPR and

the ECHR and its jurisprudence will be discussed below however keeping in mind the potential

difference in their legal status in international criminal proceedings

22 Freedom of expression and its restrictions

The Human Rights Committee in its General Comment No 34 on article 1920 explains that freedom

of expression has a broad scope of application encompasses the media and includes the right to

personal data and information21 The Human Rights Committee also holds that freedom of

expression (and opinion) ldquoconstitute the foundation stone for every free and democratic societyrdquo22

In its landmark decision in the case of Handyside v The UK the European Court of Human Rights

stipulated that ldquo[f]reedom of expression constitutes one of the essential foundations of such a

[democratic] society one of the basic conditions for its progress and for the development of every

man [hellip] Such are the demands of that pluralism tolerance and broadmindedness without which

there is no ldquodemocratic societyrdquo23

Freedom of expression is not an absolute right and may be subject to certain restrictions24 The

Human Rights Committee allows for a restriction of freedom of expression if it meets the following

conditions it must be provided for by law it must address one of the aims of article 19(3) and it

must be necessary to achieve a legitimate purpose (respect of the rights or reputations of others

protection of national security or public order or of public health or morals)25 The Human Rights

Committee further specifies that ldquoprescribed by lawrdquo means that the norm must be of sufficient

Judgment 19 July 2011 para 159 and footnotes 314 and 316 see also Carsten Stahn and Larissa van den Herik lsquolsquoFragmentationrsquo Diversification and lsquo3Drsquo Legal Pluralism International Criminal Law as the Jack-in-the-Boxrsquo in The Diversification and Fragmentation of International Criminal Law edited by Larissa van den Herik and Carsten

Stahn Martinus Nijhof Publishers 2012 pp 53-54 18 STL Trial Chamber Decision to hold Trial in Absentia Case No STL-11-01ITC 1 February 2012 para 32 19 ICTY Appeals Chamber Prosecutor v Hartmann Case No IT-02-54-R775-A Judgment 19 July 2011 para 160 and footnote 316 20 These General Comments by the Human Rights Committee constitute an authoritative legal analysis of the provisions of the treaty except to the extent that the text might indicate otherwise (Michael OrsquoFlaherty lsquoInternational Covenant on Civil and Political Rights interpreting freedom of expression and information standards for the present futurersquo in The United Nations and Freedom of Expression and Information edited by Tarlach McGonagle and Yvonne Donders Cambridge University Press 2015 p 73) 21 Human Right Committee General Comment No 34 12 September 2011 paras 11-12 See also Ilias Bantekas and Lutz Oette International Human Rights Law and Practice Cambridge University Press 2013 p 360 22 Human Rights Committee General Comment No 34 12 September 2011 para 2 23 European Court of Human Rights Handyside v The UK 7 December 1976 para 49 24 Article 19(3) ICCPR and article 10(2) ECHR See also articles 29 and 30 ICCPR for a general limitations clause 25 Human Rights Committee Sohn v Republic of Korea Communication 5181992 3 August 1995 para 104 Article 19(3) ICCPR

5

precision to enable an individual to ascertain what kinds of expression are properly restricted and

what kinds are not26 Law may include laws of contempt of court27

Restrictions to freedom of expression can only be applied for the purposes for which they are

prescribed and must be directly related to the specific need on which they are predicated28 The

Human Rights Committee has strict guidelines on the connection between the legitimate aim

pursued and the restriction29 As the Human Rights Committee has consistently found the state

invoking a legitimate ground for restriction must demonstrate ldquoin specific and individualized fashion

the precise nature of the threat and the necessity and proportionality of the specific action taken

in particular by establishing a direct and immediate connection between the expression and the

threatrdquo30 Contempt of court proceedings may be tested against the public order ground31

A restriction violates the test of necessity if the protection could be achieved in other ways that do

not restrict freedom of expression and proportionality includes the aim the chosen instrument

(including if applicable the penalty) and the interests to be protected32 For example in Dissanyaka

v Sri Lanka the Human Rights Committee found that two years of imprisonment for contempt of

court - for a public statement rejecting any disgraceful decision of the Supreme Court - was

disproportionate and a violation of article 1933 More generally the restrictions themselves must be

compatible with the provisions aims and objectives of the ICCPR34

In a similar fashion to the Human Rights Committee the European Court of Human Rights has set

out that article 10(2) ECHR requires three conditions to be met in order to allow for limitations to

freedom of expression the limitation is prescribed by law aims to achieve a legitimate objective

and is necessary in a democratic society The European Court has been consistent in asserting

that interference with this right should be interpreted narrowly35

26 Human Rights Committee General Comment No 34 12 September 2011 para 25 27 Ibid para 24 Human Rights Committee Dissanayake v Sri Lanka Communication No 13732005 4 August 2008 para 82 28 Human Rights Committee General Comment No 34 12 September 2011 para 22 29 Marjan Ajevski lsquoFreedom of Speech as Related to Journalists in the European Court of Human Rights IACtHR and the Human Rights Committee ndash a Study of Fragmentationrsquo in Fragmentation in International Human Rights Law edited by Marjan Ajevski Norwegian Centre for Human Rights 2015 p 40 30 Human Rights Committee General Comment No 34 12 September 2011 para 35 (emphasis added) Human Rights Committee Shin v Republic of Korea Communication No 9262000 19 March 2004 para 73 31 Human Rights Committee General Comment No 34 12 September 2011 para 31 32 Ibid paras 33-34 See also Jacobs White amp Ovey The European Convention on Human Rights Oxford University Press 2014 pp 437-438 33 Human Rights Committee Dissanayake v Sri Lanka Communication No 13732005 4 August 2008 paras 83-84 34 Ibid para 26 35 DJ Harris et al Law of the European Convention on Human Rights Oxford University Press 2014 p 613 European Court of Human Rights Rekveacuteni v Hungary 20 May 1999 para 42

6

According to the European Courtrsquos well-established case-law the main requirements of ldquoprescribed

by lawrdquo are accessibility and foreseeability thus enabling the citizen to regulate his conduct36

However according the European Court laws are inevitably couched in vague terms whose

interpretation and application are questions of practice37 and the level of precision required

ldquodepends to a considerable degree on the content of the instrument in question the field it is

designed to cover and the number and status of those to whom it is addressedrdquo38 In the case of

Sunday Times v The UK the European Court found that the law on contempt of court in the United

Kingdom at that time was ldquoprescribed by lawrdquo within the meaning of article 1039 In another case

the European Court found that although the criminal law provision (on proselytism) was vague the

existing body of case law enabled the applicant to regulate his conduct in the matter40 On the issue

of foreseeability the European Court has decided that a law can still be foreseeable if the person

concerned has to take appropriate legal advice to assess the consequences of a given action

especially in case of persons carrying on a professional activity41

Compared to article 19(3) ICCPR article 10(2) ECHR provides a longer list of legitimate grounds

on the basis of which the right to freedom of expression can be restricted and includes ldquopreventing

the disclosure of information received in confidencerdquo and ldquomaintaining the authority and impartiality

of the judiciaryrdquo42 In general the European Court does not require a very strict connection between

the state action and the legitimate aim pursued43 Therefore in most cases a legitimate aim can be

established without much further discussion44

Subsequently the European Court has to establish whether the interference is ldquonecessary in a

democratic societyrdquo with the adjective ldquonecessaryrdquo implying the existence of a pressing social need

The state parties have a certain margin of appreciation ndash which has often created unpredictable

jurisprudence and the criticism that it is used to shield away from a proper legal analysis of the

36 See for example European Court of Human Rights Goodwin v The UK 27 March 1996 para 31 European Court of Human Rights Rekveacuteni v Hungary 20 May 1999 para 34 European Court of Human Rights Sunday Times v The UK 26 April 1979 para 49 37 European Court of Human Rights Rekveacuteni v Hungary 20 May 1999 para 34 European Court of Human Rights Sunday Times v The UK 26 April 1979 para 49 38 European Court of Human Rights Rekveacuteni v Hungary 20 May 1999 para 34 European Court of Human Rights Vogt v Germany 26 September 1995 para 48 39 European Court of Human Rights Sunday Times v The UK 26 April 1979 paras 46-53 40 European Court of Human Rights Kokkinakis v Greece 25 May 1993 para 40 41 European Court of Human Rights Cantoni v France 11 November 1996 para 35 42 Article 10(2) ECHR 43 Marjan Ajevski lsquoFreedom of Speech as Related to Journalists in the European Court of Human Rights IACtHR and the Human Rights Committee ndash a Study of Fragmentationrsquo in Fragmentation in International Human Rights Law edited by Marjan Ajevski Norwegian Centre for Human Rights 2015 p 40 44 Harris OrsquoBoyle amp Warbrick Law of the European Convention on Human Rights Oxford University Press 2014 p 614 See for example European Court of Human Rights Rekveacuteni v Hungary 20 May 1999 para 26

7

issues at stake45 or even restrict freedom of expression46 The European Court is looking at the

interference

in the light of the case as a whole and [has to] determine whether it was ldquoproportionate

to the legitimate aim pursuedrdquo and whether the reasons adduced by the national

authorities to justify it are ldquorelevant and sufficientrdquo In so doing the Court has to satisfy

itself that the national authorities applied standards which were in conformity with the

principles embodied in Article 10 and moreover that they based their decisions on an

acceptable assessment of the relevant facts47

Factors that are significant in balancing freedom of expression against other interests include the

nature and severity of the restriction its duration and the nature of the publication in issue in

particular its tone balance factual accuracy and relevance to public debate48

The Human Rights Committee has explicitly stated that the scope of freedom of expression is not

to be assessed by reference to a ldquomargin of appreciationrdquo49 Further article 19 ICCPR does not

include the term ldquonecessary in a democratic societyrdquo whilst articles 21 and 22 ICCPR (freedom of

assembly and association respectively) do include this term However in its case law the Human

Rights Committee has read-in the qualifier50 referring to ldquothe paramount importance in a

democratic society of the right to freedom of expression and of a free and uncensored press or

other mediardquo when establishing whether the measure restricting the freedom of speech was

proportionate to the legitimate aim51

23 Freedom of expression and the media

Journalists play an essential role in a democratic society where they are the ones that report on

issues of relevance to the wider public The Human Rights Committee has stated that a free

45 Marjan Ajevski lsquoFreedom of Speech as Related to Journalists in the European Court of Human Rights IACtHR and the Human Rights Committee ndash a Study of Fragmentationrsquo in Fragmentation in International Human Rights Law edited by Marjan Ajevski Norwegian Centre for Human Rights 2015 p 42 46 Javaid Rehman International Human Right Law Pearson Education Limited 2010 p 213 Ilias Bantekas and Lutz Oette International Human Rights Law and Practice Cambridge University Press 2013 p 361 47 European Court of Human Rights Vogt v Germany 26 September 1995 para 52 European Court of Human Rights Rekveacuteni v Hungary 20 May 1999 para 42 See also European Court of Human Rights Goodwin v The UK 27 March 1996 para 40 European Court of Human Rights Zana v Turkey 25 November 1997 para 51 48 Karen Reid A Practitionerrsquos Guide to the European Convention on Human Rights Sweet amp Maxwell 2011 p465 49 Human Rights Committee General Comment No 34 12 September 2011 para 35 See also Human Rights Committee Laumlnsman et al v Finland Communication 5111992 8 November 1994 para 94 50 Marjan Ajevski lsquoFreedom of Speech as Related to Journalists in the European Court of Human Rights IACtHR and the Human Rights Committee ndash a Study of Fragmentationrsquo in Fragmentation in International Human Rights Law edited by Marjan Ajevski Norwegian Centre for Human Rights 2015 p 34 and Michael OrsquoFlaherty lsquoInternational Covenant on Civil and Political Rights interpreting freedom of expression and information standards for the present futurersquo in The United Nations and Freedom of Expression and Information edited by Tarlach

McGonagle and Yvonne Donders Cambridge University Press 2015 p 67 51 Human Rights Committee Marques v Angola Communication No 11282002 18 April 2005 para 68 See also Human Rights Committee Velichkin v Belarus Communication No 10222001 23 November 2005 para 73

8

uncensored and unhindered media is essential to ensure freedom of opinion and expression52

Further the Human Rights Committee found that the public has a right to receive information as a

corollary of the specific function of a journalist to impart information53

The European Court has recognised the role of the media as a watchdog in a democratic society

and in practice there is a strong presumption towards the necessity of the media to contribute to

public debate54 According to well-established case law of the European Court

[t]he press plays an essential role in a democratic society Although it must not overstep

certain bounds in particular in respect of the reputation and rights of others and the need

to prevent the disclosure of confidential information its duty is nevertheless to impart ndash in

a manner consistent with its obligations and responsibilities ndash information and ideas on all

matters of public interest55

The European Court gives a higher level of protection to the right of freedom of expression if it

concerns publications (or speech) which contribute to social and political debate criticism and

information56 In view of the interests of democratic society in ensuring a free press the national

margin of appreciation shall be limited in relation to a journalist fulfilling his duty to impart

information and ideas on matters of public concern57 More generally in relation to journalists and

the media the European Court acknowledges the narrowness of the ldquomargin of appreciationrdquo58 and

therefore the differences between the interpretations offered by the European Court and the Human

Rights Committee might be smaller than expected from the general analysis

For example in the case of Giniewski v France the European Court found that in matters

concerning the public interest in a democratic society such as the applicantrsquos article discussing the

reasons behind the Holocaust restrictions on freedom of expression are to be strictly construed In

that case the European Court found that the public defamation charge conviction did not meet a

ldquopressing social needrdquo59 Further in the case of Sunday Times v The UK the applicant a

52 Human Rights Committee General Comment No 34 12 September 2011 para 13 Human Rights Committee Marques v Angola Communication No 11282002 18 April 2005 para 68 53 Human Rights Committee Mavlonov and Sarsquodi v Uzbekistan Communication No 13342004 29 April 2009 para 84 54 Karen Reid A Practitionerrsquos Guide to the European Convention on Human Rights Sweet amp Maxwell 2011 pp 464-465 Jacobs White amp Ovey The European Convention on Human Rights Oxford University Press 2014 p 444 55 European Court of Human Rights Du Roy and Malaurie v France 3 October 2000 para 27 56 Jacobs White amp Ovey The European Convention on Human Rights Oxford University Press 2014 p 438 57 Ibid p 444 European Court of Human Rights Goodwin v The UK 27 March 1996 para 40 European Court

of Human Rights Castells v Spain 23 April 1992 para 43 European Court of Human Rights Du Roy and Malaurie v France 3 October 2000 para 27 European Court of Human Rights Sunday Times v The UK 26 April 1979 para 59 58 Marjan Ajevski lsquoFreedom of Speech as Related to Journalists in the European Court of Human Rights IACtHR and the Human Rights Committee ndash a Study of Fragmentationrsquo in Fragmentation in International Human Rights Law edited by Marjan Ajevski Norwegian Centre for Human Rights 2015 p 44 59 European Court of Human Rights Giniewski v France 31 April 2006 paras 51 53

9

newspaper had received an injunction to refrain from publishing on issues relating to a pending

case thus potentially engaging in contempt of court The Court found that the injunction was

disproportionate to the legitimate aim pursued especially in view of the high public interest of the

matters reported and the absence of certainty whether this presented a threat to the ldquoauthority of

the judiciaryrdquo60 It also noted that ldquowhilst the mass media must not overstep the bounds imposed in

the interests of the proper administration of justice it is incumbent on them to impart information

and ideas concerning matters that come before the courts just as in other areas of public interestrdquo61

III CONTEMPT PROCEEDINGS AT THE STL

31 Legal basis of contempt proceedings

In common law contempt of court violations refer to conduct that interferes with the good

administration of justice by threatening the integrity of the proceedings62 It envisages protecting

the public interest in the proper administration of judicial functions and promoting respect for the

rule of law in general63 The offence of contempt of court may take different forms examples include

yelling in the courtroom criticising judges the refusal to comply with a court order or publishing of

documents that damage the course of the proceedings

Contempt of court was an unforeseen problem at the ad hoc international criminal tribunals but

despite the fact that rules on this issue were initially omitted from the Statutes and the Rules of

Procedure and Evidence at the ICTY and the International Criminal Tribunal for Rwanda

(hereinafter ICTR) jurisdiction for this crime has always been assumed by the various chambers64

To fill this legality gap the ICTY justified prosecution on the basis of the ldquodoctrine of inherent

powersrdquo for the first time formulated by the Appeals Chamber in the case of the Prosecutor v

Tadic65 Subsequently the ldquodoctrine of inherent powersrdquo has been applied in other circumstances

- including the question of contempt powers - within the realm of the ICTY Statute66 Rule 77 of the

Rules of Procedure and Evidence at the ICTY - and similarly at the ICTR and Special Court for

60 European Court of Human Rights Sunday Times v The UK 26 April 1979 paras 65-67 61 Ibid para 65 62 Silvia DrsquoAscoli lsquoSentencing Contempt of Justice in International Criminal Justice An Unforeseen Problem Concerning Sentencing and Penaltiesrsquo in Journal of International Criminal Justice 5 (2007) p 736 footnote 2 referring to Att-Gen v Butterworth (1963) 1 QB 696 63 Ibid p 736 64 Ibid 65 ICTY Prosecutor v Tadic Case No IT-94-1-A-R77 Judgement on Allegations of Contempt against Prior Counsel Milan Vujin 31 January 2000 para 18 Gregory P Lombardi lsquoLegitimacy and the Expanding Power of the ICTYrsquo in New England Law Review 37 (2002) p 891 and Gwendolyn Stamper lsquoInfusing Due Process and the Principle of Legality into Contempt Proceedings before the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwandarsquo in Michigan Law Review 1098 (2011) p 1561 66 Ibid pp1561-1562 See for example ICTY Prosecutor v Delalic Case No IT-96-21-A Order on the Motion to Withdraw as Counsel Due to Conflict of Interest 24 June 1999

10

Sierra Leone - was adapted by the judges at a later stage to criminalise various specified forms of

contempt of court Furthermore at the International Criminal Court (hereinafter ICC) article 70 of

the Rome Statute does define several forms of obstruction of justice67

At the STL contempt of court or obstruction of justice is an offence regulated in rule 60bis of the

Rules of Procedure and Evidence This provision stipulates that the Tribunal is empowered to hold

in contempt those who knowingly and wilfully interfere with the task of the Tribunal to administrate

justice This includes giving false evidence to the Tribunal disclosure of information in violation of

a court order failure to comply with a court order and threatening intimidating or bribing

witnesses judges or other officers of the Tribunal

Whilst in many instances prosecution for contempt of court is necessary to protect the integrity of

international tribunals and their proceedings one must also be vigilant that prosecuting journalists

for contempt of court can result in intimidation of genuine journalism Thierry Cruvellier a war

crimes reporter who has been subject to contempt of court proceedings explained that the

restraints put on journalists through among others these type of proceedings seriously decrease

public access to what happens at the UN tribunals68

32 Contempt proceedings against journalists at international criminal tribunals

Over the last decade the Prosecution at international criminal tribunals has instigated a number of

contempt cases against journalists

In the case of the Prosecutor v Jovic the ICTY Prosecutor charged the accused editor-in-chief of

a Croatian daily newspaper with contempt of court over publication of closed session witness

testimony in a Croatian newspaper in spite of an order issued by the Trial Chamber The Appeals

Chamber held that the mens rea is established by an accusedrsquos knowledge both of the order and

of his or her conduct in breach of it69 From this case and also from Prosecutor v Marijcic amp Rebic

it can be concluded that in order to convict of this specific form of contempt at the ICTY it suffices

to prove beyond reasonable doubt that the accused carried out the physical act of releasing

confidential information relating to the Tribunal proceedings (actus reus) and the actual knowledge

of publishing information in violation of a court order (mens rea)70 This was later confirmed in the

67 Furthermore rule 51(3) of the Rome Statute provides for a much stricter framework for judicial law making 68 Thierry Cruvellier Journalisme amp tribunaux 4 October 2011 The Prosecutor at the ICTR attempted to prosecute Mr Thierry Cruvellier and the newspaper Diplomatie Juridiciaire for revealing the identity of a potentially key prosecution witness in the Bagosora case but the Chamber dealing with the matter rejected the Prosecutorrsquos request Whilst public information on this case is scarce Cruvellier himself wrote a commentary 69 ICTY Appeals Chamber Prosecutor v Jovic Case No IT-95-14amp142-R77-A Judgement 15 March 2007 para 25 70 ICTY Trial Chamber Prosecutor v Marijacic amp Rebic Case No IT-95-14-R772 Judgement 10 March 2006 para 18

11

Prosecutor v Hartmann case71 These cases however differ from the contempt of court

proceedings at the STL as the accused in Al Jadeed and Al Khayat have been prosecuted for

publishing information on purported confidential witnesses and violating a court order to remove

that information which does not require actual proof of releasing confidential information (see

further below)

In a contempt case before the Special Court for Sierra Leone (although not against a journalist but

against Defence counsel for Charles Taylor) the Single Judge considered that mere knowledge of

the order is insufficient but that it must be established that the disclosure was deliberate72

According to the Single Judge the case differed from the Prosecutor v Hartmann where the

publication in question had been aimed at the wider public whilst the Defence Trial Brief had been

primarily intended to be put before the Chamber although it was publicly available The Single

Judge was unable to conclude from the circumstantial evidence that this had been a deliberate

action on the part of Defence counsel73

Further in the case of the Prosecutor v Margetic case another contempt case against a journalist

in relation to revealing confidential witness information the ICTY Trial Chamber considered that in

respect of several witnesses whose identity had been disclosed they would potentially suffer from

personal and psychological consequences Moreover in respect of three particular witnesses it

actually found that such personal and psychological consequences had been proven The Chamber

concluded that the accusedrsquos actions had in fact undermined the Tribunalrsquos ability to safeguard the

evidence of protected witnesses74

In the most controversial of contempt cases at the international tribunals journalist and former

spokesperson for the ICTYrsquos Office of the Prosecutor Florence Hartmann was prosecuted Ms

Hartmann was accused and in the end convicted of having disclosed confidential information from

the Milosevic case at the ICTY The case was severely criticised from different angles mainly given

the allegation that the confidential nature of the information that Hartmann allegedly disclosed had

already been widely disseminated in the public domain prior to Hartmannrsquos publications75 The

Appeals Chamber in Prosecutor v Hartmann however concluded that both the article and the book

71 ICTY Appeals Chamber Prosecutor v Florence Hartmann Case No IT-02-54-R775-A Judgement 19 July 2011 para 3 see further below 72 Special Court for Sierra Leone Single Judge In the Matter of Contempt Proceedings Arising from the Case of the Prosecutor v Charles Ghankay Taylor Case No SCSL-12-01-T Judgment in Contempt Proceedings 19 October 2012 para 40 73 Ibid para 43 74 ICTY Trial Chamber Prosecutor v Margetic Case No IT-95-14-R776 Judgement on allegations of contempt 7 February 2007 paras 86-87 75 See for example Ruth Wedgwood lsquoThe Strange Case of Florence Hartmannrsquo in The American Interest Vol 4 No 6 This argument parallels the judgment of the European Court in Observer and Guardian v The UK finding

that once the book was published in another country with no ban on importation the interest of the state in maintaining confidentiality ceased to exist see European Court of Human Rights Observer and Guardian v The UK 26 November 1991

12

authored by Hartmann violated the confidential nature of the two orders76 and that this disclosure

of confidential information ldquodecreased the likelihood that states would cooperate with the Tribunal

in the future thereby undermining its ability to exercise its jurisdiction to prosecute and punish

serious violations of humanitarian lawrdquo77

33 Contempt proceedings at the STL

In the Al Jadeed and Al Khayat contempt case before the STL78 the accused Al Jadeed TV

corporation and its deputy head of news Ms Khayat were charged with contempt of court for

broadcasting andor publishing information on purported confidential witnesses in the main case

ldquothereby undermining the public confidence in the Tribunalrsquos ability to protect the confidentiality of

information about or provided by witnesses or potential witnessesrdquo (count one) and also for non-

compliance with a court order to remove that particular information from its website and YouTube

channel (count two)79

With respect to count one the Defence argued that no names of individuals were released that

their faces had been pixelated in the broadcasts and that the aim of the broadcasts was to call into

question the functioning of the Court given that this information had been leaked from within the

Court80 The Amicus Curiae Prosecutor argued that the information released included the

individualsrsquo initials voices professions work places towns or other geographic location as well as

the backgrounds visible in the broadcasts and that this could easily lead to identification of the

individuals81

The case was adjudicated by the Contempt Judge on 18 September 2015 whereby the natural

person Ms Khayat was found guilty of the second count of contempt of court - namely her failure

to remove the confidential information from their website and YouTube channel following a court

order to do so - but was acquitted for the first count of undermining the public confidence in the

Tribunalrsquos ability to protect the confidentiality of information The corporate accused Al Jadeed TV

76 ICTY Appeals Chamber Prosecutor v Florence Hartmann Case No IT-02-54-R775-A Judgement 19 July

2011 para 3 76 Ibid para 162 (footnotes omitted) 77 Ibid 78 It is unfortunate that it has been problematic to scrutinise the Tribunalrsquos decision and other aspects of the case in detail because of the fact that part of the Al Jadeed amp Al Khayat case took place in closed session and a seemingly large portion of the evidence has been kept from the public 79 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed and Al Khayat Case No STL-14-05ICJ Redacted version of decision in proceedings for contempt with orders in lieu of an indictment 31 January 2014 paras 36-37 80 STL Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05PTCJ Public redacted version of ldquoDefence final trial briefrdquo 16 June 2015 para 27 under (a) 81 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05TCJ Public redacted version of judgment 18 September 2015 para 74

13

was acquitted of all charges82 The Amicus Curiae Prosecutor has filed a notice of appeal against

the judgment83

In the contempt judgment the Judge held that in principle the disclosure of information on purported

witnesses can undermine public confidence in the Tribunalrsquos ability to protect the confidentiality of

information about or from (potential) witnesses and as such interfere with the administration of

justice84 He added that the disclosure of this type of information does not automatically constitute

contempt85 but that the conduct ldquomust have been of sufficient gravity to create objectively the

likelihood of undermining the public confidence in the Tribunalrsquos ability to protectrdquo its witnesses86

However the Contempt Judge held that whilst identifying information had been disclosed by Ms

Khayat the Prosecution had not substantiated that the persons concerned suffered any harm from

these disclosures87 neither could he conclude that the disclosure of the information had had any

impact on the witnessesrsquo confidence in the Tribunalrsquos ability to protect information88 The actus reus

of the alleged crime in count one had thus not been proved by the Prosecutor89

The second count relates to the allegation that the defendants had failed to remove from their

website and YouTube channel several episodes that gave information on purported confidential

witnesses On 10 August 2012 the Chamber had issued an order to immediately remove the

episodes from the websites90 Referring to the case of the Prosecutor v Hartmann at the ICTY the

Contempt Judge indicated that it is sufficient for the Prosecution to establish that the act was

deliberate and not accidental for a finding that the accused intended to violate the court order91

Whilst it was at issue whether or not defendant Ms Khayat had received this order the Contempt

Judge concluded that she had either seen the order or deliberately chose to ignore it92 Given that

Ms Khayatrsquos behaviour or that of her colleague Ms Bassam could not be attributed to Al Jadeed

TV the Contempt Judge found that the corporate entity could not be found guilty of count two93

82 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05TCJ Public redacted version of judgment 18 September 2015 83 STL Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05AAP Prosecutionrsquos Notice of Appeal 5 October 2015 84 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05TCJ 18 September 2015 Public redacted version of judgment para 40 85 Ibid para 45 86 Ibid para 46 87 STL Pre-Trial Judge Prosecutor v Ayyash et al Case No STL-11-01PTPTJ Order for Immediate Removal of Disseminated Material and Cessation of Dissemination 10 August 2012 para 122 88 Ibid para 124 89 Ibid para 127 90 STL Pre-Trial Judge Prosecutor v Ayyash et al Case No STL-11-01PTPTJ Order for Immediate Removal of Disseminated Material and Cessation of Dissemination 10 August 2012 91 Ibid para 54 92 Ibid paras 172-173 93 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05TCJ Public redacted version of judgment 18 September 2015 para 190

14

On 6 October 2015 the Contempt Judge issued the Reasons for Sentencing Judgment in which

he found that the knowing violation of a court order is a serious offence since it defies the Tribunalrsquos

authority94 The Contempt Judge held that the fact that the publication of the episodes did not

undermine the publicrsquos confidence in the Tribunal was a mitigating circumstance95 The Contempt

Judge imposed a fine of 10000 Euros96

IV CONCLUDING REMARKS FREEDOM OF EXPRESSION IN THE CONTEXT OF CONTEMPT

OF COURT

In the Al Jadeed and Al Khayat contempt case the Chamberrsquos order to remove the episodes from

the websites as well as the contempt of court proceedings against the media company and its

deputy head of news are undeniably interferences with the exercise of the right to freedom of

expression The next and more interesting question is whether this interference is in accordance

with the human rights standards as laid down by the ICCPR and in the second place the ECHR

including the interpretation of the Human Rights Committee and the European Court for Human

Rights

One of the main objections to the law of contempt of court has been its uncertainty as the law is

mostly judge made The same applies to a certain extent to the law on contempt of court before

the international criminal tribunals although over time this law has been crystallised through a

number of contempt cases The Contempt Judge at the STL also relied on the jurisprudence of the

ICTY97 Whilst contempt of court as such has been laid down in the STLrsquos Rules of Procedure and

Evidence legality issues arose with the prosecution of a corporate entity

Lebanese television company Al Jadeed TV under international criminal law The STL Appeals

Chamber read into the word ldquopersonsrdquo in rule 60bis on contempt of court another interpretation of

the same word ldquopersonsrdquo in article 1 of the STL Statute This latter article provides jurisdiction for

the common international crimes and is limited to natural persons However where it concerns

contempt of court the Appeals Chamber has expanded the STLrsquos jurisdiction to include legal

persons98 The reasoning that led the Contempt Judge to conclude that the addition of ldquolegalrdquo to

ldquopersonrdquo cannot be read into the text where it is not explicitly included - which was rejected by the

94 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05TCJ Reasons for Sentencing Judgment 6 October 2015 para 17 95 Ibid para 18 96 Ibid para 22 97 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05TCJ 18 September 2015 Public redacted version of judgment para 54 and footnotes 54 57 69 71-72 78 81-86 89-91 and 96-103 98 STL Appeals Chamber Amicus Curiae Prosecutor v Al Jadeed and Al Khayat Case No STL-14-05PTAPAR1261 Decision on interlocutory appeal concerning personal jurisdiction in contempt proceedings 24 July 2014

15

Appeals Chamber - warrants merit99 The Contempt Judge in the contempt trial judgment analysed

the existence of a possible customary norm in respect of corporate liability and stated that ldquostate

practice varies significantlyrdquo100 and rightly concluded that no such norm exists The prosecution of

corporate entities without an explicit basis in the law whilst at the same time restricting their right

to freedom of speech is thus not in accordance with the requirement ldquoprescribed by lawrdquo

As to the legitimate aim pursued the Contempt Judge in relation to count one refers to

ldquomaintaining public confidence in courtsrsquo authority and their ability to administer justice is essential

to protecting their proper functioningrdquo101 Count two deals with the violation of a court order The

aim pursued by these contempt of court proceedings clearly is the good administration of justice

and should be tested against the public order ground of article 19(3) ICCPR Interestingly the

Contempt Judge makes reference to the European Court case of Worm v Austria in which a

journalist was convicted for having exercised prohibited influence on criminal proceedings by

publishing an unfavourable article about the criminal trial (and the guilt) of a former Minister102 By

referring to this European Court case the Contempt Judge is relying on ldquomaintaining the authority

and impartiality of the judiciaryrdquo as the legitimate aim pursued an aim that is only contained in the

ECHR and not in the ICCPR103

Further in the case of Worm v Austria the European Court established that ldquothe limits of

permissible comment may not extend to statements which are likely to prejudice whether

intentionally or not the chances of a person receiving a fair trial or to undermine the confidence of

the public in the role of the courts in the administration of criminal justicerdquo104 Therefore the

European Court indeed allowed for the pursuance of a legitimate aim similar to the contempt cases

before the STL However the European Court gave the Austrian state a wide margin of

appreciation in permitting a law that infringes on the right to freedom of expression but does not

require an actual result of influence on the proceedings105 It is unlikely that the Human Rights

Committee with its rejection of the margin of appreciation and requirement of a nexus between the

threat and the expression would have come to the same conclusion It is therefore unclear why

99 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed and Al Khayat Case No STL-14-05PTCJ Decision on motion challenging jurisdiction and on request for leave to amend order in lieu of an indictment 24 July 2014 para 72 and STL Appeals Chamber Amicus Curiae Prosecutor v Al Jadeed and Al Khayat Case No STL-14-05PTAPAR1261 Decision on interlocutory appeal concerning personal jurisdiction in contempt proceedings 24 July 2014 para 74 100 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05TCJ 18 September 2015 Public redacted version of judgment para 62 101 Ibid para 40 102 European Court of Human Rights Worm v Austria 29 August 1997 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05TCJ Public redacted version of judgment 18 September 2015 para 40 and footnote 63 103 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05TCJ 18 September 2015 Public redacted version of judgment para 40 and footnote 63 104 European Court of Human Rights Worm v Austria 29 August 1997 para 50 105 Ibid paras 52-56

16

the Contempt Judge solely relied on this particular European Court case and without any reference

to ICCPR which clearly has a more authoritative status in international law

The next question is whether the restrictions taken on the basis of this legitimate aim are directed

against a specific threat and are necessary and proportionate In relation to count one the

Contempt Judge found that although the information provided in the broadcasts permitted the

identification of purported confidential witnesses the Prosecutor had not proven beyond

reasonable doubt that this disclosure was objectively likely to undermine public confidence in the

Tribunalrsquos ability to protect the confidentiality of information This conclusion was based on the

absence of proof that the individuals suffered any harm of the disclosures and of proof that the

broadcasts had any impact on the witnessesrsquo or general publicrsquos confidence in the Tribunal106 This

is exactly what the Human Rights Committee is referring to when stressing that the precise nature

of the threat needs to be demonstrated in a specific and individualised fashion in particular by

establishing a direct and immediate connection between the expression and the threat107 The

Contempt Judge consequently concluded that the connection between the broadcasting of the

episodes and the threat of undermining the publicrsquos confidence could not be established (a similar

test was applied in the case of the Prosecutor v Margetic at the ICTY in which the connection

between the accusedrsquos actions and the Tribunalrsquos ability to safeguard evidence of protected

witnesses had been proven beyond reasonable doubt108)

The fact that this connection between the broadcasts and the alleged threat of undermining the

publicrsquos confidence has not been proven creates a paradoxical situation in relation to the conviction

on the basis of the second count The Contempt Judge found that the disclosure of the information

itself did not amount to contempt of court but convicted the accused Ms Khayat for violating an

order to remove this information The Contempt Judge acknowledged in relation to count one the

need to weigh the integrity of the proceedings against the freedom of expression but refrained from

applying this test in view of the acquittal of the accused for this count109 However and on this the

Contempt Judge remained silent the ICCPR standard on restrictions to freedom of expression

part of general international law also applies to the second count as this also involves an

infringement of freedom of expression The ICTY has found that a court order if authorised by law

and necessary for maintaining a legitimate aim constitutes a valid limitation to the freedom of

expression110 Now that it has not been proven that the conduct underlying the order of 10 August

106 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05TCJ Public redacted version of judgment 18 September 2015 paras 78-91 120-127 107 Human Rights Committee General Comment No 34 12 September 2011 para 35 108 See also above in section 33 and ICTY Trial Chamber Prosecutor v Margetic Case No IT-95-14-R776 Judgement on allegations of contempt 7 February 2007 paras 86-87 109 STL Contempt Judge Amicus Curiae Prosecutor v Al Jadeed amp Al Khayat Case No STL-14-05TCJ Public redacted version of judgment 18 September 2015 para 41 110 ICTY Trial Chamber Prosecutor v Jovic Case No IT-95-14ampIT-95-142-R77 Judgement 30 August 2006 para 23 ICTY Trial Chamber Prosecutor v Marijacic amp Rebic Case No IT-95-14-R772 Judgement 10 March 2006 para 39

17

2012 is criminal and amounts to contempt of court it can be questioned whether the order was

necessary as both the precise nature of the threat and the direct and immediate connection

between the expression and the threat have not been demonstrated

Therefore instead of fighting the contempt allegations the accused could have attempted to

challenge the order of 10 August 2012 on the basis of violation of their freedom of expression

However given that Ms Khayat has always denied receipt of the order she is not in a position to

challenge the legality of the order itself Another relevant question in this regard is whether Ms

Khayat and Al Jadeed would have had standing in front of the STL had they wanted to appeal from

the order as they were not yet a party to any STL proceedings at that point in time

Conclusively so far the contempt proceedings at the STL have not been unproblematic centring

on the Contempt Judgersquos disagreement with the appeals panel on the legality of prosecuting

corporate entities for this crime Whilst the appeals proceedings against the contempt judgment

have not yet started and the second contempt case against Mr Al Amin and newspaper Akhbar

Beirut will commence in early 2016 at this stage the jurisprudence is not yet very convincing

Freedom of expression is a fundamental international human rights norm especially where it

concerns journalists and warrants a more carefully formulated test for legitimate interference with

that norm